The Facts

Mr and Mrs Brake ran a farm as a holiday letting business until they were declared bankrupt. The farm was sold and Mr and Mrs Brake continued to work in the business as employees.

Business email addresses were set up. Accounts were set up in Mr and Mrs Brake’s names and an enquiries account (designed to receive enquiries from customers) was also set up. Mrs Brake also used this enquiries account for personal emails.

The company owning the business was later sold to another company and the next year, Mr and Mrs Brake were dismissed. Emails were found in the enquiries email account which the defendants to this claim alleged showed that Mrs Brake had committed wrongdoing. The defendants provided these emails to their lawyers, a press agent, and Mrs Brake’s trustee in bankruptcy. Mrs Blake brought claims in the High Court, arguing that the defendants had breached confidentiality and misused her private information.

The High Court dismissed the claims and Mrs Brake appealed to the Court of Appeal, which dismissed the appeal.

Central to the courts’ decisions was that the courts did not consider that Mrs Brake had succeeded in demonstrating that she had a reasonable expectation of privacy in relation to documents in the enquiries account.

Key points are that:

•  Mrs Brake had chosen to put her own emails into the company’s business email account instead of using one of her own private email accounts.
•  The other two employees who used the business account did not use it for private emails.
•  These other employees replied to business emails sent to Mrs Brake which were in the business account.
•  Although Mrs Brake had had the password for the email account, the password belonged to her employer and was a security measure for her employer’s benefit.
•  Mrs Brake’s employer administered the email account.
•  At the same time as the enquiries account had been set up, separate accounts in the Brakes’ names (as well as those of other employees) had been created. The obvious inference from having a business account as well as the separate email account in her name was that the account in her name was subject to a reasonable expectation of privacy, but the enquiries account was not.

The courts also held that, even if there had been a reasonable expectation of privacy or confidentiality, the defendants had disclosed the emails to their professional advisors, a trustee in bankruptcy and to another business associate. This did not amount to a breach of confidence or misuse of private information. Additionally, Mr and Mrs Brake had not suffered any appreciable damage, so that, even had an award of damages been made, it would, on the facts, have been relatively low.

What does this mean for employers?

Whether or not employees have a reasonable expectation of privacy in relation to private emails sent from work accounts will depend on the particular facts. Clearly communicated policies and rules around the use of personal emails are very helpful in defeating arguments of a reasonable expectation of privacy. Instructing employees to send all private emails from individual accounts rather than from a central business account (where one exists) will also assist in defeating arguments about privacy of emails.

(1) Nihal Mohammed Kamal Brake; (2) Andrew Young Brake v (1) Geoffrey William Guy; (2) The Chedington Court Estate Ltd; (3) Axnoller Events Ltd (https://www.bailii.org/ew/cases/EWCA/Civ/2022/235.pdf)